The right to a fair and public trial: considering a private meeting between a judge, complainant, and counsels for the prosecution and defence without the accused present
Director of Public Prosecutions v Smith [2024] HCA 32
Summary
In Director of Public Prosecutions v Smith [2024] HCA 32 (11 September 2024) the High Court overturned a decision made by the Court of Appeal of the Supreme Court of Victoria regarding issues of criminal procedure. The issue of criminal procedure concerned a meeting between the complainant, the judge, and counsel for both the prosecution and the accused (the accused being the respondent to this appeal) on the day before the judge presided over a special hearing to take the evidence of the complainant. The grounds of appeal concerned whether the Court of Appeal of the Supreme Court of Victoria was correct to hold that the meeting was:
not authorised by section 389E of the Criminal Procedure Act 2009 (Vic) (CPA);
inconsistent with the principle of open justice; and
a fundamental irregularity in the accused's trial that could not be waived.
Ultimately, the High Court allowed the appeal, with the majority finding that the meeting was authorised under section 389E(1) of the CPA and no fundamental irregularity in fact occurred.
Facts
The accused was charged with four offences relating to sexual assault of a child under 16 years and sexual penetration of a child under 16 years under the Crimes Act 1958 (Vic).
Pursuant to section 389E of the Criminal Procedure Act 2009 (Vic), a County Court of Victoria Judge and counsel for both the prosecution and the accused met with the complainant (a minor at the time) before they gave evidence at a "special hearing" on the recommendation of an intermediary. The meeting took place at the Child Witness Service offices. The accused was not in attendance nor was the meeting recorded.
The day after the meeting, the complainant gave evidence at a special hearing before the same judge. Following the special hearing, the Court of Appeal of the Supreme Court of Victoria published reasons for judgment in Alec (a pseudonym) v The King (Alec). In Alec, the Court of Appeal set aside the conviction of the accused on grounds that a substantial miscarriage of justice had occurred as a result of the judge meeting with the complainant "privately" (in the presence of the intermediary but in absence of counsel) in advance of that hearing. The Court of Appeal held that the private meeting between the judge and the complainant was a "fundamental irregularity" which "tainted" the complainant's evidence, giving rise to "suspicion of partiality" on the part of the judge. As a result, in Alec the conviction was set aside and a re-trial ordered on the basis that "as a result of an error or irregularity in, or in relation to, the trial there [had] been a substantial miscarriage of justice".
Following the judgment of Alec, counsel for the accused submitted that the recording of the special hearing where the complainant gave evidence should not be admissible and a new special hearing be held before a different judge. Counsel for the prosecution submitted Alec was distinguishable on the facts as counsel for both the prosecution and accused were present at the meeting with the complainant. The DPP subsequently applied for the County Court to reserve a question of law arising before trial for determination of the Court of Appeal. As a result, four questions of law were put to the Court of Appeal which were the subject of re-examination by the High Court in the current case.
Decision
The majority (Gageler CJ, Gleeson, Jagot and Beech-Jones JJ)
One of the key issues for consideration before the High Court was whether the judge's direction to hold the meeting constituted a "fundamental irregularity". In the Court of Appeal, the DPP argued that the private meeting was supported by the statutory power in section 389E(1) of the Criminal Procedure Act 2009 (Vic) (CPA) and was therefore not an irregularity. Notably, as part of its ruling and consideration of this issue, the High Court considered the impact of sections 24 and 30 of the Charter of Human Rights and Responsibilities (Vic) (the Charter) on the interpretation of section 389E(1) of the CPA.
The majority of the High Court considered sections 24 and 32 of the Charter in determining whether the meeting was authorised under section 389E of the CPA:
Section 24(1) provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
Section 24(2) provides that, despite subsection (1), a court or tribunal may exclude persons from all of part of a hearing if permitted to do so by law other than the Charter.
Section 32(1) of the Charter sets out that, so far as possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.
The court quoted R v DA (2016) 263 A Crim R 429, 443 [44] which said that section 32 of the Charter has been said to mean that "[w]here more than one interpretation of a provision is available on a plain reading of the statute, then that which is compatible with rights protected under the Charter is preferred."
The court noted, in the second reading speech introducing Part 8.2A of the CPA which includes section 389E(1), the Attorney General made a statement as to compatibility with human rights as follows:
A fair trial does not require a hearing with the most favourable procedures for the accused: it must take into account other interests, including the interests of the victim and of society generally in having a person brought to justice. Any limitation on the right of a fair hearing by altering the way that evidence may be presented in court is balanced with these broader considerations.
The court provided that the CPA (as well as other legislation, such as the Open Courts Act 2013 (Vic)) demonstrates that the principle of open justice cannot be absolute. The court suggests this is ratified by the terms in section 24(2) of the Charter which expressly permits certain persons to be excluded from all or part of a hearing.
The majority of the High Court found that the meeting between the complainant, judge and counsel did not amount to a "hearing" within the meaning of section 24(1) of the Charter. The majority commented that it would be wrong to construe section 24 of the Charter as if "hearing" referred to "every circumstance involving the exercise of any power, administrative or judicial, which a court might be called upon to exercise in a criminal proceeding". The majority held that the meeting was conducted within the court's non-judicial function, preliminary to exercising jurisdiction to hold a special hearing the following day. The majority found that there was no reason to interpret section 389E(1) more narrowly than the statutory language permits due to some non-existent incompatibility with section 24(1) of the Charter. Therefore, section 24(1) of the Charter did not provide a reason to construe section 389E of the CPA to exclude the power to direct the holding of the meeting.
The majority clarified that Alec did not stand for the proposition that section 389E did not authorise private meetings between a trial judge and a witness outside of the court. Rather, Alec is concerned with the risk that something could have occurred at the meeting which was relevant at the trial and the apprehension of bias. The majority found however that these concerns did not eventuate on the facts in the current case.
The majority also considered that the accused was not assisted by the observations of Lord Diplock of the principles of open justice in Attorney-General v Leveller Magazine Ltd [1979] AC 440, 450, regarding proceedings in court be held in open court and evidence be communicated publicly. The majority stated that Lord Diplock's focus was on "proceedings", however considered it is not the case that every exercise of power by a court in a proceeding is confined to a hearing, or that every administrative step in a proceeding is conducted in public. The majority also considered that arguments presented by the accused based on Lawrence v The King [1933] AC 699, regarding the necessity for an accused to be present throughout their trial, with "trial" meaning the "whole" of a proceeding, did not assist. The majority considered that these arguments were expressed at too high a level of generality in this case to be useful.
The High Court found that the Court of Appeal of the Supreme Court of Victoria was wrong to conclude that section 389(E)(1) did not authorise the direction of a private meeting between a trial judge and a witness outside the courtroom. As such, there was no fundamental irregularity.
Justice Edelman's Judgment
Justice Edelman dissented, although ultimately concluded that the appeal should be allowed. His Honour's most crucial point of difference in his reasons was that, unlike the majority, he did not accept that section 389E(1) of the CPA empowered the court to direct that a private meeting take place between the judge, counsel and a witness, in the absence of the accused. His Honour considered that directions are excluded under section 398E(1) that result in "unfairness or inefficiency in the conduct of the proceeding". His Honour considered this due to section 32 of the Charter and by regard to five matters of "statutory and extrinsic context" which he identified as:
The power in section 389E(1) to make directions at a ground rules hearing contains terms more constrained than the general directions power in section 181 of the CPA.
Acknowledging that section 389E(2) does not limit the scope of section 389E(1), the examples in section 389E(2) all concern the conduct of a hearing, not private and out of court conduct.
Section 389E(1) should be interpreted against a background where there is serious doubt as to whether courts have any general authority to give directions that bind non-parties in any conduct outside the courtroom.
Assuming that the private meeting formed part of the criminal proceeding, to accept that section 398E(1) permits directions excluding an accused from attending part of a proceeding would appear inconsistent with the scheme of the CPA, which usually generally requires the accused to attend hearings that form part of a proceeding.
The fair and efficient conduct of the proceeding is crucial and there are alternative ways that the private meeting could have met principles of open justice, for example, the meeting being recorded or the accused viewing/hearing the meeting from a remote location.
Notably, Justice Edelman provided that, while none of the overlapping aspects of fairness, impartiality and public-setting provided in section 24 of the Charter are absolute, any qualifications to the right must "represent no greater qualification than the situation calls for" (Brown v Stott [2003] 1 AC 681, 704). Justice Edelman also considered that section 24 of the Charter was not so confined as to apply only to matters occurring within a hearing itself. His Honor set out that fairness and public nature of a hearing may be compromised by events that happen outside of the hearing. Justice Edelman found that an unrecorded private meeting between a witness and a judge without the accused has the potential to compromise the impartiality, fairness and public nature of a later hearing.
Ultimately, Justice Edelman concluded that the appeal should be allowed but differed from the majority in his reasoning. While his honour found the private meeting to be irregular, he did not consider it to constitute a fundamental irregularity. His honour found that there were a number of mitigating factors leading to this conclusion, including that:
counsel for the accused confirmed in advance of the meeting that they had no objection to the meeting;
counsel for the accused attended the meeting; and
there was no information before the Court of Appeal concerning what occurred at the meeting, other than that the presiding judge said "hello" to the complainant.
Commentary
From a human rights perspective, this case highlights that an accused's right to a fair, impartial public hearing under section 24(1) of the Charter is not an absolute right. The majority judgment further indicates that that exercise of non-judicial power outside of a hearing will not attract application of section 24(1) of the Charter. This case reaffirms the importance and application of section 32 of the Charter insofar as interpreting statutory provisions consistently with human rights. The case also serves as a warning regarding the holding of private meetings between judges and witnesses without the accused being present ahead of a trial.
The full decision can be read here.